Chapter 2 - Eligibility Requirements

The Immigration and Nationality Act (INA) provides for the admission of noncitizen spouses and children (derivatives) of asylees, refugees, and lawful permanent residents (LPRs) who received this status as a principal refugee or principal asylee.^[1]

A. General Eligibility Requirements

An eligible petitioner may petition for their spouse and children by filing a Refugee/Asylee Relative Petition (Form I-730). The petitioner must file a separate Form I-730 for each qualifying family member.^[2]

1. Petitioners

For a petitioner to be eligible to file a Form I-730, the petitioner must:

• Be a principal refugee or asylee, or have LPR status based on being a principal refugee or asylee;
• File a separate Form I-730 for each qualifying family member within 2 years of the date on which the petitioner was admitted as a refugee into the United States, or the petitioner was approved as an asylee;^[3] and
• File based upon a relationship with a qualifying family member.

For general eligibility, the relationship between a petitioner and a qualifying family member must exist:

• On the date the petitioner was approved for asylum^[4] or admitted as a refugee;^[5]
• On the date the petitioner filed the Form I-730;^[6]
• On the date USCIS adjudicates the Form I-730;^[7] and
• On the date the beneficiary is admitted into the United States, if the beneficiary resided abroad when USCIS approved the Form I-730.^[8]

2. Beneficiaries

Qualifying family members for purposes of a Form I-730 include a spouse^[9] and unmarried children.^[10] A spouse or child may be living inside or outside of the United States.

Spouses generally include persons recognized as married under the laws where the marriage took place (the place of celebration).^[11] However, the INA does not recognize unconsummated proxy marriages^[12] and polygamous marriages.^[13] The INA limits spousal relationships for immigration purposes to those where the parties to a marriage were both present during the marriage ceremony or consummated the marriage following the ceremony if the parties were not present together.^[14] Generally, to demonstrate a qualifying spousal relationship for Form I-730, the petitioner must provide evidence of a legally recognized marriage to the noncitizen spouse.

In limited circumstances, a marriage may violate the strong public policy of the United States or the state in which the couple resides and may therefore not be valid for U.S. immigration purposes.^[15] Some examples of when a marriage may violate public policy include polygamous marriages, marriage between close relatives, and marriage involving minors.^[16] If the petitioner or beneficiary was previously married, the petitioner must also establish by a preponderance of the evidence that any prior marriage was legally terminated.

Eligible children must be under age 21 on the date the petitioner files an application for asylum or applies for refugee status. The child of an asylee continues to be a child for Form I-730 eligibility if the child is under 21 years of age on the date on which the parent applied for asylum.^[17] The child of a refugee continues to be a child for Form I-730 eligibility if the child is under 21 years of age on the date that the parent applied for refugee status, which is the date that USCIS first interviews the principal refugee applicant.^[18]

Eligible children include children born in wedlock, out of wedlock, adopted children, legitimated children, and stepchildren.^[19] Children who are conceived but not yet born before the petitioner’s admission as a refugee or asylum approval are also eligible.^[20]

Asylee beneficiaries must not be subject to certain bars to asylum.^[21] Refugee beneficiaries must be admissible or eligible for a waiver of inadmissibility, and they must not have engaged in persecution as described in the second sentence of INA 101(a)(42).^[22]

B. Two-Year Filing Deadline and Humanitarian Waiver

By regulation, the petitioner must file the Form I-730 within 2 years of the petitioner’s admission as a refugee or grant of asylum.^[23]

USCIS may waive the 2-year filing deadline for humanitarian reasons on a case-by-case basis.^[24] If USCIS determines that humanitarian reasons exist for extending the filing deadline, USCIS may do so, and there is no set limit on the length of extension that USCIS may approve.

The petitioner may directly request a waiver or USCIS may approve a waiver on its own accord if there are sufficient humanitarian reasons. In general, the petitioner should initiate the request for a humanitarian waiver of the 2-year filing deadline.

The petitioner should provide a letter or explanation and all appropriate evidence that supports the waiver request. Although the following is not an exhaustive list, USCIS may consider the following factors in determining whether to approve a waiver request:

• Significant harm is likely to occur to the beneficiary if not allowed to join family in the United States;
• Petitioner’s earlier belief that a relative was deceased or missing, but the petitioner later learned the relative was alive;
• Mental or physical health of the petitioner and impact on the petitioner’s ability to know, understand, and comply with filing requirements;
• Age of the beneficiary;
• Advanced age of the petitioner;
• Educational background of the petitioner and ability to understand the Form I-730 or form instructions;
• Petitioner’s diligence in trying to obtain competent assistance to complete Form I-730;
• Availability of competent assistance to the petitioner;
• Ineffective assistance of counsel or other representative;
• Whether the petitioner willfully or recklessly disregarded the Form I-730 filing deadline;
• Whether the petitioner previously filed a timely Form I-730 that was ultimately abandoned or denied;
• Existence of significant misinformation that the petitioner received that contributed to the petitioner’s belief that the petitioner was ineligible to file a Form I-730;
• Circumstances that have generated public confusion generally about the ability of the petitioner to file Form I-730 (for example, when the petitioner had a conditional asylum approval, and there was uncertainty as to when the relationship needed to have been in existence to meet following to join criteria), or other statutory or regulatory immigration changes that may create confusion and uncertainty;
• Community attention and presence of sympathetic factors (for example, the beneficiary or family members have been victims of highly publicized crime or natural disaster); or
• Other public interest factors.

C. Petitioners

Principal asylees or principal refugees are eligible to file a Form I-730. Petitioners who acquire LPR status after they are admitted to the United States as a principal refugee or approved as a principal asylee are also eligible to file a Form I-730.

An asylee or refugee who becomes a naturalized citizen is not eligible to file a Form I-730.^[25] However, if the petitioner became a naturalized U.S. citizen after filing the Form I-730, USCIS will generally continue to process the petition.

A refugee petitioner must have been admitted to the United States as a principal refugee. The primary^[26] classes of admission that would qualify a petitioner to be eligible to file a Form I-730 are:

• RE1; or
• RE6 (approved as principal on a refugee application).

D. Beneficiaries

The relationship between the petitioner and the family member must exist:

• On the date the petitioner was approved for asylum^[27] or admitted as a refugee^[28] (except for children who were conceived but not yet born when their parent was admitted as a refugee or approved for asylee status);^[29]
• On the date the petitioner filed a Form I-730;^[30]
• On the date USCIS adjudicates the Form I-730;^[31] and
• On the date the beneficiary is admitted into the United States, if the beneficiary resided abroad when USCIS approved the Form I-730.^[32]

Relationships created after the petitioner was admitted as a refugee or acquired asylee status do not qualify for Form I-730 petition purposes. However, a principal refugee or asylee may be eligible to file a Petition for Alien Relative (Form I-130) for a spouse or child if the principal refugee or asylee becomes an LPR.^[33]

1. Spousal Beneficiaries

A spouse must meet the INA’s definition of a spouse.^[34] Generally, USCIS does not recognize the following relationships as marriages, even if valid in the place of celebration:

• Relationships where one party is not present during the marriage ceremony (proxy marriages) unless the parties later consummate the marriage;^[35] or
• Relationships that are contrary to public policy in the United States, including those involving certain minors, polygamy, or incest.^[36]

USCIS recognizes that in certain circumstances a spousal relationship may exist for the purposes of obtaining derivative refugee or asylee status if there is evidence of an informal marriage that does not satisfy the place of celebration rule.^[37] USCIS may recognize a spousal relationship if the petitioner demonstrates the parties were unable to have their marriage legally recognized in the place of celebration as a result of their flight from persecution and circumstances beyond their control or due to restrictive laws or practices in their country of origin or country of first asylum.^[38]

USCIS only applies the exception for spouses who have been prevented from obtaining a valid marriage if the petitioner shows indicia of a marriage such as, but not limited to, evidence of a marriage ceremony, cohabitation over a period of time, holding themselves out to be spouses over a period of time, and children born to the relationship.^[39]

2. Child Beneficiaries

Definition of a Child

For purposes of Form I-730 eligibility, a child is an unmarried person under 21 years of age who is:

• A child born in wedlock^[40] to the petitioner;
• The legitimated^[41] child of the petitioner who was under 18 and in the legal custody of the legitimating parent or parents at the time of legitimation;
• The stepchild^[42] of the petitioner who was under 18 at the time of the marriage creating the step relationship;
• A child adopted while under age 16 (or 18 if the sibling exception applies^[43]) who has been in the legal custody of and jointly resided with the petitioner for at least 2 years;^[44] or
• A child born out of wedlock to a natural^[45] parent. If the petitioning parent is the natural father and the child has not been legitimated, the natural father and child must have had a bona-fide parent-child relationship before the child reached the age of 21.^[46]

Child’s Marital Status

To receive derivative asylum or refugee status, the child must be unmarried at the time:

• The petitioner files the Form I-730; and
• USCIS adjudicates the petition (and, if the child beneficiary is outside the United States, at the time the beneficiary is admitted into the United States).^[47]

As long as a beneficiary child is unmarried at these points in time, an intervening marriage and divorce or termination through an annulment does not result in their ineligibility. 

Child’s Age

Congress enacted the Child Status Protection Act (CSPA) to protect certain children from aging out of certain immigration benefits, including beneficiaries of Form I-730 petitions. The CSPA went into effect on August 6, 2002.^[48] Under the CSPA, USCIS continues to classify a child who is under 21 at the time their parent applied for refugee^[49] or asylum^[50] status to be a child regardless of their actual age at the time of the adjudication of Form I-730.

For asylees, USCIS continues to classify children who turn 21 years old after the petitioning parent files an asylum application, but before USCIS adjudicates the Form I-730, to be children and remain eligible for derivative asylum status.^[51]

For refugees, USCIS continues to classify children who turn 21 years old after the petitioning parent applies for refugee status, but before USCIS adjudicates the Form I-730, to be children and remain eligible for derivative refugee status.^[52]

If the petitioner filed an application for refugee or asylum status before August 6, 2002, and their child turned 21 years of age before that date, that application must have been pending on August 6, 2002, for the child to continue to be classified as a child.^[53]

Children In Utero

A child who was conceived, but not yet born on the date the petitioner was admitted to the United States as a refugee or approved for asylum is eligible for derivative refugee or asylum status as a Form I-730 beneficiary.^[54]

Accordingly, a child who was born within approximately 9 months after the date on which the petitioner acquired status may be eligible to be a beneficiary, so long as the beneficiary falls within one of the definitions of a child.^[55]

Non-Biological Parent-Child Relationship

A child might qualify as the child of the principal refugee or asylee even if the petitioner is not the biological parent. For example, the petitioner may have been married to the child’s mother when the child was born and may also have been in the United States continuously since before the earliest possible date of the child's conception, preventing the father’s biological paternity. Although not the biological child of the petitioning father, the beneficiary could meet the definition of an in-wedlock child or stepchild.

USCIS considers a child to be born in wedlock when the child’s legal parents are married to one another at the time of the child’s birth and at least one of the legal parents has a genetic or gestational relationship to the child. As such, a petitioning father or mother’s nonbiological child with a lawful spouse meets the definition of an in-wedlock child if the law of the jurisdiction in which the child was born recognizes the petitioner and spouse as the child’s legal parents.^[56]

Additionally, even if the law does not establish a legal parental relationship, when a child is born as the legal child of only one partner of a married couple, USCIS considers the child to be the stepchild of the other partner for immigration purposes.^[57] Because the child qualifies as the petitioner's stepchild,^[58] USCIS does not need to decide if the child otherwise meets the definition of a child.^[59]

E. Beneficiaries in Removal Proceedings

1. Beneficiaries in Removal Proceedings or with a Final Order of Removal

USCIS may approve beneficiaries in the United States who are in removal proceedings or have a final order of removal for derivative asylum or refugee status if the beneficiaries meet all other eligibility requirements for Form I-730.^[60]

If a Form I-730 beneficiary has a removal order, a Form I-730 approval provides the beneficiary with derivative refugee or derivative asylee status, and the removal order becomes unenforceable.^[61]

2. Beneficiaries Who Re-Entered the United States After Removal

In general, a noncitizen who re-enters the United States without prior authorization after having been previously removed or having departed voluntarily while under an order of exclusion, deportation, or removal from the United States, is subject to reinstatement of removal.^[62] USCIS does not have the authority to reinstate prior orders of removal.

When adjudicating Form I-730, if an officer encounters an applicant who has re-entered without prior authorization after a prior order of removal, USCIS contacts U.S. Immigration and Customs Enforcement, Enforcement and Removal Operations (ICE ERO) about potential reinstatement of the order of removal. ICE ERO can choose to complete and effectuate service of a Notice of Intent/Decision to Reinstate Prior Order (Form I-871).

Similarly, if a beneficiary has re-entered without inspection and ICE ERO has already signed and served a Form I-871, USCIS generally denies the Form I-730.

Footnotes

[^ 1] See INA 207(c)(2)(A) and INA 208(b)(3).

[^ 2] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).

[^ 3] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).

[^ 4] See 8 CFR 208.21(b).

[^ 5] See 8 CFR 207.7(c).

[^ 6] See 8 CFR 207.7(c) and 8 CFR 208.21(b).

[^ 7] See 8 CFR 207.7(c) and 8 CFR 208.21(b).

[^ 8] See 8 CFR 207.7(c) and 8 CFR 208.21(b). U.S. Customs and Border Protection (CBP) determines whether a beneficiary is eligible for admission or parole at the port of entry.

[^ 9] See INA 101(a)(35).

[^ 10] See INA 101(b)(1)(A)-(E).

[^ 11] See Matter of P-, 4 I&N Dec. 610, 613 (Acting A.G. 1952) (“But, apart from saying that picture and proxy marriages will not create the status of ‘wife’ for immigration purposes, the Congress has not said what will. In the absence of such legislative provision, the generally accepted rule is that the validity of a marriage is governed by the law of the place of celebration.”).

[^ 12] See INA 101(a)(35).

[^ 13] See INA 101(a)(35). See Matter of H (PDF)-, 9 I&N Dec. 640 (BIA 1962) (holding that polygamous marriages are not recognized for immigration purposes, even if recognized as lawful in the jurisdiction where the marriage took place).

[^ 14] See INA 101(a)(35), which excludes proxy marriage from meeting the qualifications of a spouse, wife, or husband. USCIS does not consider a marriage to be valid for immigration purposes if both contracting parties to the marriage were not physically present together during the marriage ceremony, unless the parties have consummated the marriage.

[^ 15] See Matter of H- (PDF), 9 I&N Dec. 640 (BIA 1962), Matter of Zappia (PDF), 12 I&N Dec. 439 (BIA 1967), and Matter of Da Silva (PDF), 15 I&N Dec. 778, 779 (BIA 1976) (A marriage complying with all the requirements of the state of celebration is invalid if it violates the strong public policy of the state where one of the parties is domiciled at the time of the marriage and where the couple intends to reside after the marriage.). However, the Board of Immigration Appeals in Matter of Hirabayashi (PDF), 10 I&N Dec. 722 (BIA 1964) determined a marriage may be valid if evidence establishes that the parties did not travel to the state of celebration with a primary purpose of evading prohibitions in their state of residence.

[^ 16] There are no statutory minimum age requirements for the petitioner or beneficiary of a spousal immigration petition. However, USCIS evaluates whether the age of the beneficiary or petitioner, or both, at the time of marriage, violates the law of the place of celebration or violates the law or public policy of the state where the couple will reside.

[^ 17] See INA 208(b)(3)(B).

[^ 18] See INA 207(c)(2)(B).

[^ 19] See INA 101(b)(1)(A)-(E).

[^ 20] See 8 CFR 207.7(c) and 8 CFR 208.21(b).

[^ 21] See Chapter 3, Admissibility and Waiver Requirements [4 USCIS-PM C.3]. See INA 208(b)(2)(A)(i)-(v). See 8 CFR 208.21(a).

[^ 22] See Chapter 3, Admissibility and Waiver Requirements [4 USCIS-PM C.3]. See INA 207(c)(2)(A).

[^ 23] Before February 28, 1998, there was no 2-year deadline in 8 CFR 207.7 or 8 CFR 208.21. Therefore, if a petitioner acquired their status on or before February 27, 1998, the petitioner could have filed their Form I-730 at any time before February 28, 2000.

[^ 24] See 8 CFR 207.7(d), 8 CFR 208.21(c), and 8 CFR 208.21(d).

[^ 25] See, for example, INA 208(b)(3) (“A spouse or child . . . of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.”).

[^ 26] RE4 and REF have also previously been used for a refugee class of admission codes, including some principal applicants, but are no longer in use for newly admitted refugees.

[^ 27] See 8 CFR 208.21(b).

[^ 28] See 8 CFR 207.7(c).

[^ 29] See 8 CFR 207.7(c) and 8 CFR 208.21(b).

[^ 30] See 8 CFR 207.7(c) and 8 CFR 208.21(b).

[^ 31] See 8 CFR 207.7(c) and 8 CFR 208.21(b).

[^ 32] See 8 CFR 207.7(c) and 8 CFR 208.21(b). CBP determines whether a beneficiary is eligible for admission at the port of entry.

[^ 33] See 8 CFR 204.2.

[^ 34] See INA 101(a)(35).

[^ 35] See INA 101(a)(35).

[^ 36] See Matter of H- (PDF), 9 I&N Dec. 640 (BIA 1962) (holding that polygamous marriages are not recognized for immigration purposes, even if recognized as lawful in the jurisdiction where the marriage took place).

[^ 37] The term “informal marriage” includes marriages that are not legally recognized in the place of celebration because of the spouses’ flight from persecution and circumstances beyond their control, or due to restrictive laws or practices in their country of origin or country of first asylum. While the term “camp marriage” was historically used to describe these marriages, the term “informal marriage” includes marriages that may have occurred outside of a camp, and marriages the petitioner is unable to obtain in their country of origin or country of first asylum.

[^ 38] USCIS is generally bound by the place-of-celebration rule that states that the law of the place where the marriage was celebrated determines the legal validity of a marriage for immigration purposes. See Matter of Lovo-Lara (PDF), 23 l&N Dec. 746 (BIA 2005), Matter of Da Silva (PDF), 15 l&N Dec. 778 (BIA 1976), and Matter of H- (PDF), 9 l&N Dec 640 (BIA 1962).

[^ 39] See Revised Guidance on Informal (“Camp”) Marriages, issued February 14, 2022.

[^ 40] See INA 101(b)(1)(A). See Volume 6, Immigrants, Part B, Family-Based Immigrants, Chapter 8, Children, Sons, and Daughters, Section A, Definition of a Child, Subsection 1, Child Born In or Out of Wedlock [6 USCIS-PM B.8(A)(1)].

[^ 41] See Volume 12, Citizenship and Naturalization, Part H, Children of U.S. Citizens, Chapter 2, Definition of Child and Residence for Citizenship and Naturalization, Section B, Legitimated Child [12 USCIS-PM H.2(B)]. A child can be legitimated under the laws of the child’s residence or domicile, or under the laws of the father’s residence or domicile. See INA 101(b)(1)(C). A person’s residence is the person’s place of general abode, that is, the principal, actual dwelling place without regard to intent. See INA 101(a)(33). A person’s domicile refers to a “person's true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.” See Black’s Law Dictionary (12th ed. 2024). In most cases, a person’s residence is the same as a person’s domicile. A legitimated child includes a child of a Form I-730 petitioner who is the child’s genetic parent, or their gestational parent at the time of the child’s birth, if the relevant jurisdiction recognizes the gestational parent as the child’s legal parent.

[^ 42] See INA 101(b)(1)(B).

[^ 43] See INA 101(b)(1)(E)(ii).

[^ 44] See INA 101(b)(1)(E).

[^ 45] A natural parent may be a genetic parent, or a gestational parent (who carries and gives birth to the child) if the relevant jurisdiction recognizes the gestational parent as the child’s legal parent. See INA 101(b).

[^ 46] See INA 101(b)(1)(D).

[^ 47] See INA 101(b)(1). See 8 CFR 207.7(c) and 8 CFR 208.21(b).

[^ 48] See Pub. L. 107-208 (PDF) (August 6, 2002).

[^ 49] See INA 207(c)(2)(B).

[^ 50] See INA 208(b)(3)(B).

[^ 51] See INA 208(b)(3)(B). For purposes of determining a beneficiary’s eligibility under the CSPA, the petitioning parent’s asylum application is either an Application for Asylum and for Withholding of Removal (Form I-589), or the written record of the petitioning parent’s positive credible fear determination if USCIS grants asylum through the Asylum Merits Interview (AMI) process. For noncitizens who receive their grant of asylum through the AMI process, USCIS considers the date USCIS serves the positive credible fear determination on the noncitizen to be the asylum application date.

[^ 52] See INA 207(c)(2)(B). See Volume 7, Adjustment of Status, Part A, Adjustment of Status Policies and Procedures, Chapter 7, Child Status Protection Act, Section E, Derivative Refugees, Subsection 2, Determining Child Status Protection Act Age [7 USCIS-PM A.7(E)(2)]. USCIS considers the date a USCIS officer interviews the principal refugee parent for Registration for Classification as Refugee (Form I-590), as the date that the parent applied for refugee status.

[^ 53] See Child Status Protection Act, Pub. L. 107-208 (PDF) (August 6, 2002).

[^ 54] See 8 CFR 207.7(c) and 8 CFR 208.21(b).

[^ 55] See INA 101(b)(1).

[^ 56] See Volume 6, Immigrants, Part B, Family-Based Immigrants, Chapter 8, Children, Sons, and Daughters, Section A, Definition of a Child, Subsection 1, Child Born In or Out of Wedlock [6 USCIS-PM B.8(A)(1)].

[^ 57] See INA 101(b)(1)(B) (Stepchildren are included in the INA definition of a child so long as the parents married when the stepchild, or the spouse’s biological child, was under the age of 18.).

[^ 58] See INA 101(b)(1)(B).

[^ 59] See INA 101(b)(1)(A), INA 101(b)(1)(C), and INA 101(b)(1)(D).

[^ 60] See 8 CFR 208.21(c) (explaining that an otherwise eligible beneficiary may be approved “regardless of the status of that spouse or child in the United States”).

[^ 61] See 8 CFR 208.22.

[^ 62] See INA 241(a)(5).